Standing Committee on Justice and Human Rights
Statement- Kate Salters, PhD, MPH
Good morning everyone. My name is Kate Salters and I am a PhD-trained
Infectious Disease Epidemiologist working as a Research Scientist at the
BC Centre for Excellence in HIV/AIDS (the BC-CfE) and a faculty member
at Simon Fraser University within the Faculty of Health Sciences. Thank
you for inviting me to speak with you today.
I would like to first acknowledge the land and territories on which we gather
today. It is critical to reflect on the role of colonialism in the disproportionate
burden of HIV among Indigenous populations nationwide.
During my brief time with you, I hope I am able to impress upon you the overwhelming evidence that challenges the criminalization of nondisclosure of one’s HIV status. I will demonstrate how the law poses direct
and significant barriers to our efforts to prevent HIV and provide clinical
care to those living with HIV. I am here on behalf of many other scientists,
community members, and clinicians who witness the impact these laws
have on our communities and how they threaten our public health efforts.
Quite frankly, the current law does not reflect reality, nor science. There is
overwhelming scientific evidence demonstrating that, when a person living
with HIV is on treatment (antiretroviral therapy), not only does their health
and longevity improve, but HIV replication is halted. Antiretroviral therapy
drives HIV to undetectable levels in biological fluids, including blood,
semen and cervico-vaginal fluids. Having an undetectable viral load is the
goal of antiretroviral therapy and means that HIV cannot be transmitted to a
sexual partner.
This double benefit of antiretroviral therapy is known as Treatment as
Prevention, or TasP, a made-in-Canada strategy formally endorsed by
the World Health Organization, the UN, and the government of Canada
since 2015. The BC-CfE originally postulated the TasP strategy in 2006
and its implementation in BC has led to the largest decline in new HIV
cases in the country.
This phenomenon is not new. In 2014, 70 Canadian scientists signed a
joint statement affirming the negligible possibility of sexual HIV
transmission by a person living with HIV who is receiving antiretroviral
therapy or uses a condom. This was five years ago. There have been at
least 12 HIV non-disclosure cases since then, as reported by the Canadian
HIV/AIDS Legal Network.
Since then, major international studies have definitively confirmed that
consistent and sustained antiretroviral therapy stops onward HIV
transmission. Most recently, the PARTNER study assessed HIV
transmission risk among serodisordant gay couples, meaning one partner
was living with HIV on treatment and the other was HIV-negative. Scientists
measured over 77,000 episodes of sex where a condom was not used.
How many transmission events were observed between study participants?
There were none. Zero cases.
To add, previous PARTNER study findings showed no cases of HIV
transmission between serodiscordant gay and straight couples in over
58,000 acts of condomless sex.
In other words, Undetectable means HIV is Untransmittable, or U=U. The
Honourable Ginette Petitpas Taylor acknowledged the clear science behind
the U=U message to end stigma and in 2018 became the first Minister of
Health to officially endorse the campaign, demonstrating Canadian
leadership on science-informed health policy.
In stark contrast to these efforts, the current criminal code perpetuates HIVrelated
stigma, leading to significant delays or total lack of testing. As a
result, individuals living with HIV will not initiate treatment in a timely
manner that eliminates the risk on onward transmission. The virus rapidly
replicates during acute (or early) infection. Eliminating delays in diagnosis
and connecting people to care are the critical steps needed to eliminate the
HIV epidemic in Canada.
Women are especially at risk of delays in accessing care. This is linked to
many factors, including: HIV-related stigma, poverty, and poor
understanding of the needs of women living with HIV.
A study conducted by our organization found that, of nearly 1,000
participants, significantly more men than women living with HIV (65% vs.
45%) report fulfilling the current legal requirement to have both a low viral
load and condom use with a new sexual partner. This was despite the fact
that nearly 100% of the participants reported doing one or the other. That
means that despite taking the established steps to guarantee the
elimination of transmission risk, more than half of the female study
participants could be at risk of being charged with aggravated sexual
assault.
The current law fails to address how particularly women (cis and trans
women) may not be able to safely negotiate condom use with their sexual
partners. These real, gendered risks are not reflected in the current
interpretation of the law. Research conducted by my colleagues and I found
that 81% of women living with HIV in BC have reported experiences of
violence in their lives. Similar findings have been published in a national
cohort of over 1,400 women living with HIV. More recently, we have shown
that 60% of women living with HIV have experienced sexual or physical
intimate partner violence, suggesting huge inequities in sexual
relationships. Women have reported being threatened, assaulted,
abandoned, and “outted” as being HIV-positive when disclosing their HIVstatus
to sexual partners. Women living with HIV may instead choose to
take actions within their control in order to eliminate the risk of HIV
transmission by maintaining an undetectable viral load.
It is naïve and inappropriate to assume that women living with HIV should
be legally required to ensure their male sexual partners use condoms.
Under current interpretations of the law, a woman with undetectable HIV
who is unable to convince her male sexual partner to use a condom may
be charged with aggravated sexual assault. She would then be classified
as a violent sexual offender, despite having no intention of transmission
and there being zero risk of HIV.
Nevertheless, our research shows women with HIV are doing everything in
their power, through adherence to antiretroviral therapy and sustained
virologic suppression, to eliminate the risk of onward HIV transmission.
Relying on an undetectable viral load is an empowering and effective way
for women living with HIV to reduce risks to themselves and others.
Aggravated sexual assault is among the most serious offences within the
Criminal Code and should be applied when a perpetrator “wounds, maims,
disfigures or endangers the life of the complainant”. This law has been
used by disgruntled former partners as a form of violent retribution against
people living with HIV. This law stigmatizes people living with HIV. This law
prevents people from getting tested and treated. It is imperative that we
stop erroneously using this law to criminalize the sexual behaviour of
people living with HIV.
Thank you for your time.